UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TECH-SONIC, INC.,

Plaintiff,

 Civil Action 2:12-cv-263

v. Judge Edmund A. Sargus

 Magistrate Judge Elizabeth P. Deavers

SONICS & MATERIALS, INC.,

 

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of Defendant’s Motion to Transfer

Venue to the District of Connecticut. (ECF No. 7.) Plaintiff filed its Opposition to Defendant’s

Motion on July 2, 2012. (ECF No. 13.) Defendant filed its Reply on July 19, 2012. (ECF No.

17.) For the reasons that follow, Defendant’s Motion is GRANTED. 

I. BACKGROUND

 This diversity action arises out of a contract dispute between Plaintiff, Tech-Sonic, Inc.,

and Defendant, Sonics & Materials, Inc. Plaintiff is an Ohio corporation with its principal place

of business in Columbus, Ohio. Defendant is a Delaware corporation with its principal place of

business in Connecticut. Plaintiff alleges that its predecessor, T/S Korea, by and through its sole

shareholder and sole director, Mr. Byoung Ou, entered into a sales agreement (“Agreement”) 

with Defendant in February, 2005. T/S Korea was a South Korean corporation that marketed

and distributed welding machines in the Asian marketplace. Plaintiff alleges that the Agreement

provided T/S Korea with the exclusive right to purchase power supplies and converters from

Defendant for use in welding machines. In June, 2005, Mr. Ou caused Plaintiff, Tech-Sonic,

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Inc., to be formed. Around that same time, T/S Korea discontinued its operations in South Korea

and assigned all of its assets to Plaintiff, including all of its rights under the Agreement. That

same month, Plaintiff began issuing purchase orders directly to Defendant from its principal

place of business in Ohio. 

From June 2005 forward, Defendant routinely shipped its product to Plaintiff in Ohio. 

Defendant also shipped its product to additional locations worldwide at Plaintiff’s direction. In

December, 2007, Defendant and Mr. Ou entered into a guaranty agreement (“Guaranty”), under

which Mr. Ou personally guaranteed all debts owed to Defendant by Plaintiff. Plaintiff alleges

that Defendant breached the Agreement in the Spring of 2009. Specifically, Plaintiff alleges that

Defendant sold its power supplies and converters to Kormax, one of Plaintiff’s competitors. 

This alleged breach, according to Plaintiff, caused Plaintiff to lose a significant contract with LG

Electronics in South Korea. 

On March 26, 2012, Plaintiff filed this action in the Southern District of Ohio alleging

various state-law claims arising from the alleged breach of contract. Defendant seeks to transfer

this case to the District of Connecticut under 28 U.S.C. § 1404(a). In support of its Motion,

Defendant asserts that the public and private factors the Court must analyze under § 1404(a)

heavily weigh in favor of transfer. Plaintiff opposes Defendant’s Motion, arguing that the

balance of the private and public interest factors weigh against transfer. 

II. ANALYSIS 

1. 28 U.S.C. § 1404(a)

Section 1404(a) provides as follows: “[f]or the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil action to any other district or

division where it might have been brought . . . .” 28 U.S.C. § 1404(a). Thus, the threshold

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consideration is whether the action could have been brought in the transferee court. Kay v. Nat’l

City Mortg. Co., 494 F. Supp. 2d 845, 849 (S.D. Ohio 2007). If so, “the issue becomes whether

transfer is justified under the balance of the language of § 1404.” Id. 

“The moving party bears the burden of showing the need to transfer venue.” Slate Rock

Const. Co. Ltd. v. Admiral Ins. Co., No. 2:10-cv-1031, 2011 WL 3841691, at *5 (S.D. Ohio

Aug. 30, 2011) (citing Jamhour v. Scottsdale Ins. Co., 211 F. Supp.2d 941, 945 (S.D. Ohio

2002)). The moving party must demonstrate that the proposed transferee court is “a more

convenient forum, not [simply] a forum likely to prove equally convenient or inconvenient.” 

Van Dusen v. Barrack, 376 U.S. 612, 645–46 (1964); see also Shanechain v. Macy’s, Inc., 251

F.R.D. 287, 292 (S.D. Ohio 2008) (“[Section] 1404 does not allow . . . for transfer if that transfer

would only shift the inconvenience from one party to another.”). 

A district court deciding a § 1404(a) motion “has broad discretion to grant or deny” the

requested transfer. Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994). Courts generally

consider a variety of private and public factors when considering a motion to transfer to a more

convenient forum. Moore v. Rohm & Haas Co., 446 F.3d 643, 647 n.1 (6th Cir. 2006). The

Court considers the following interests of the litigants: 

[P]laintiff’s forum preference as manifested in the original choice; the defendant’s

preference; whether the claim arose elsewhere; the convenience of the parties as

indicated by their relative physical and financial condition; the convenience of the

witnesses–but only to the extent that the witnesses may actually be unavailable for

trial in one of the fora; and the location of books and records (similarly limited to the

extent that the files could not be produced in the alternative forum). 

Slate Rock Construction, 2011 WL 3841691, at *6 (quoting Jumara v. State Farm Ins. Co., 55

F.3d 873, 879–80 (3d Cir. 1995)). The Court also considers the following interests of the public: 

[T]he enforceability of the judgment; practical considerations that could make the

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trial easy, expeditious, or inexpensive; the relative administrative difficulty in the

two fora resulting from court congestion; the local interest in deciding local

controversies at home; the public policies of the fora; and the familiarity of the trial

judge with the applicable state law in diversity cases. 

Id.

2. Motion to Transfer Analysis 

Plaintiff does not dispute that the District of Connecticut is a proper venue for this action. 

Thus, the Court must consider and weigh the various private and public factors. For the reasons

set forth below, the Court concludes that the balance of the relevant factors weighs in favor of

transfer. 

i. Private Factors 

Plaintiff’s choice to litigate in its home state of Ohio is generally entitled to substantial

deference. Jamhour, 211 F. Supp. 2d, at 946. A plaintiff’s choice of forum, however, is entitled

to less deference when the chosen forum “has no connection with the matter in controversy.” St.

Joseph Solutions, LLC v. Microtek Medal, Inc., No. 11-cv-388, 2011 WL 5914010, at *7 (S.D.

Ohio Nov. 28, 2011) (citation omitted); see also U.S. ex rel. Kairos Scientia, Inc. v. Zinsser Co.,

No. 10-cv-383, 2011 WL 127852, at *2 (N.D. Ohio Jan. 14, 2011) (according less weight to

plaintiff’s choice of forum where “the vast majority of operative facts giving rise to the lawsuit

took place outside of Ohio”); JFE Steel Corp. v. ICI Americas, Inc., No. 06-cv-2386, 2008 WL

4449080, at *1 (N.D. Ohio Sept. 30, 2008) (“Where plaintiff’s choice of forum bears no

relationship to the case, too much deference or weight given to that choice creates an

unnecessary risk of forum shopping.”). Here, notwithstanding Plaintiff’s assertion that “[a]

substantial part of the events giving rise to this action occurred in [Ohio]” (Compl. ¶ 5, ECF No.

1), the Court finds that Ohio has virtually no connection to the contract dispute that underlies this

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case. The original parties to the contract were a Connecticut corporation and a South Korean

corporation. The contract was negotiated and executed in Connecticut. The allegedly breaching

conduct occurred in Connecticut.1

 The party alleged to have breached the Agreement is a

Connecticut corporation. Accordingly, Plaintiff’s choice of forum commands less deference

than it otherwise would under different circumstances.

Moreover, the choice-of-law provision contained in the Agreement provides at least some

evidence that the parties intended to have a Connecticut Court resolve any disputes that might

arise between them. Although not relevant to the breach of contract claim that is the subject of

this lawsuit, the forum-selection clause contained in the Guaranty also suggests such an intent. 

See Jumara, 55 F.3d at 880 (noting that “a forum selection clause is treated as a manifestation of

the parties’ preference as to a convenient forum”). Though neither is dispositive on the question

of the parties’ intent, the Court concludes that the combined effect of the choice-of-law provision

in the Agreement and the forum-selection clause in the Guaranty renders Plaintiff’s choice of

forum deserving of slightly less deference.2

 

The next factors, convenience of the parties and witnesses, either favor transfer or are

neutral. It would convenience Defendant if this case were transferred to its home-state of

1

 Although Defendant shipped some of its products to Plaintiff in Ohio, none of those

shipments is at issue here with respect to the alleged breach of the provision of the Agreement. 

Put another way, the shipments Defendant allegedly shipped to Kormax in South Korea that are

purportedly in violation of the exclusivity provision of the Agreement form the basis of this

lawsuit. 

2

 The Court acknowledges Plaintiff’s argument that it only consented to the nonexclusive

jurisdiction of Connecticut in the Guaranty. (Pl.’s Op. 11, ECF No. 13.) Still, in attempting to

divine the intent of the parties, the Court finds that consent to Connecticut’s jurisdiction,

nonexclusive or otherwise, indicates its willingness to submit to the jurisdiction of a Connecticut

court.

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Connecticut. Likewise, it would convenience Plaintiff if this case remained here in Ohio. 

Defendant asserts that, “with the possible exception of Mr. Ou, all conceivable witnesses . . . will

be located in either Connecticut or Asia.” (Def.’s Mot. 9, ECF No. 7.) Plaintiff counters that

“[t]here are an equal amount of witnesses within the [respective Districts].” (Pl.’s Op. 14, ECF

No. 13.) Although neither party provides a list of potential witnesses and the substance of their

expected testimony, see Egrsco, LLC v. Evans Garment Restoration, LLC, No. 09-cv-358, 2009

WL 3259423, at *6 (S.D. Ohio Oct. 8, 2009) (the parties “must clearly specify the essential

witnesses to be called and must make a general statement of what their testimony will cover”)

(citation omitted), the Court concludes that most, if not all, nonparty witnesses will be located in

either Connecticut or Asia. Conceivable witnesses having personal knowledge of the alleged

sale to Kormax include current or former employees of Defendant and Kormax. Any such

witnesses will almost certainly be located in either Connecticut or Asia (or at least not in Ohio). 

Any custodians of records evidencing the alleged sales will likewise be located in Connecticut or

Asia.3

 Conversely, nothing in the record suggests that nonparty witnesses might be located in

Ohio. Therefore, the factors of party and witness convenience either favor transfer or are

neutral. 

ii. Public Factors 

Connecticut has a greater interest than Ohio in resolving this dispute. The disputed

Agreement was negotiated and executed in Connecticut. The allegedly-breaching conduct

originated in Connecticut. The party alleged to have breached the contract is a Connecticut

corporation. The original parties to the contract were a Connecticut corporation and a South

3

 The locations of records or books is also a neutral factor, insofar as neither party argues

that the location of such evidence favors its position. 

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Korean corporation. See Sky Tech. Partners, LLC v. Midwest Research Inst., 125 F. Supp. 2d

286, 293 (S.D. Ohio 2000) (transferring a contract dispute to another venue where a substantial

part of the events giving rise to the alleged breach occurred in the tranferee district, including the

contract negotiations and the conduct alleged to have constituted a breach); Trustar Funding v.

Mruczynski, No. 09-cv-1747, 2010 WL 1539759, at *5 (N.D. Ohio Mar. 30, 2010) (“Courts

making venue determinations in contract disputes have looked to such factors as where the

contract was negotiated or executed, where it was to be performed, and where the alleged breach

occurred.”) (citation omitted); Soprema, Inc. v. Beachside Roofing LLC, No. 09-cv-558, 2010

WL 1132662, at *8 (N.D. Ohio Mar. 18, 2010) (finding transfer appropriate where the parties

negotiated the disputed contract in Hawaii and the allegedly breaching conduct occurred in

Hawaii). Indeed, the only interest Ohio might have in resolving this case is the fact that Plaintiff

is an Ohio corporation. Still, Plaintiff was not an original party to the contract. Plaintiff only

became a party after Mr. Ou ceased doing business with T/S Korea and began ordering products

on behalf of Plaintiff instead.

The fact that Connecticut law controls further tips the scale in favor of transfer. While

the parties debate whether the relevant term in the Agreement is a forum selection clause or

merely a choice-of-law provision, it is undisputed that Connecticut law will control in this case. 

Indeed, the parties’ recent briefing related to Defendant’s pending Motion to Dismiss relies

almost exclusively on Connecticut law. (ECF Nos. 14, 18, and 19.) “A diversity case should be

decided by a court which is most conversant with the applicable state law.” Midwest Motor

Supply Co., Inc. v. Kimball, 761 F.Supp. 1316, 1318 (S.D. Ohio 1991); see also Exceptional

Innovations, LLC v. Kontron America, Inc., (S.D. Ohio Oct. 11, 2007) (“There is an

appropriateness, too, in having the trial of a diversity case in a forum that is at home with the

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state law that must govern the case . . . .) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509

(1947)). The briefing related to Defendant’s Motion to Dismiss demonstrates the significant role

Connecticut law will play in this case. Moreover, Plaintiff’s has brought five separate causes of

action, each of which will require the Court to apply Connecticut law at all stages of the

litigation, from the Motion to Dismiss that is currently pending to a jury trial and possibly

beyond. The District of Connecticut is more familiar with Connecticut law, and is thus in a

better position to apply it and all of its nuances to Plaintiff’s numerous claims. 

The remaining public factors apply neutrally. Neither party argues that the enforceability

of the judgment, practical considerations, or public policies favor its respective position. 

Accordingly, the balance of factors weighs in favor of transferring this case to the

District of Connecticut. The only factor militating against transfer is Plaintiff’s choice of forum. 

As discussed above, however, Plaintiff’s choice carries less weight here because the facts giving

rise to this lawsuit occurred elsewhere. Moreover, the choice-of-law and forum-selection

provisions contained in the Agreement and the Guaranty suggest that the parties intended to have

Connecticut courts resolve any disputes that might arise between them. The remaining relevant

factors, including the convenience of the parties, Connecticut’s greater interest in resolving this

dispute, and the choice-of-law provision, all favor transfer. Therefore, Defendant’s Motion to

Transfer Venue is GRANTED. (ECF No. 7.) 

IT IS SO ORDERED. 

Date: September 21, 2012 /s/ Elizabeth P. Deavers 

 Elizabeth P. Deavers

 United States Magistrate Judge

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